Monday, September 29, 2008

In two separate lawsuits, Philip Morris and Walgreens are challenging the constitutionality of San Francisco's recently enacted ban on tobacco sales in pharmacies. Philip Morris has filed suit in federal court, arguing that it has a First Amendment right to sell its products. Walgreens filed suit in San Francisco Superior Court, arguing that the regulation is unfair because its treats various types of retailers differently.

According to an article in the San Francisco Chronicle: "Philip Morris USA, the nation's largest tobacco company, filed suit in federal court Wednesday, arguing the city of San Francisco has unconstitutionally banned pharmacies from selling tobacco products. ... Philip Morris is arguing that it has a First Amendment right of free expression to sell its products. 'Although called a ban on sales, the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights,' said Joe Murillo, a lawyer representing Philip Morris USA. 'Likewise, the ban unfairly deprives adult consumers of the opportunity to buy tobacco products from legitimate, licensed retail businesses.'"

"Mitch Katz, director of the city's Department of Public Health, remarked that he must have missed the day in social studies class the teacher discussed the constitutionality of cigarette sales. 'Do you remember any part of the Bill of Rights being about pharmacies selling tobacco?' he asked." ...

"Walgreens, meanwhile, filed a brief Wednesday stating the company would lose millions of dollars, equal to 9 percent of a store's non-pharmacy sales, if the ban takes effect. The company said the city is discriminating by not applying the ban to grocery stores or big-box stores that have pharmacies within them and also sell cigarettes. Katz has said it's a contradictory message for Walgreens to use the motto "the pharmacy America trusts" while selling cancer-causing tobacco products. In its brief, Walgreens said grocery stores are also perceived as health-promoting venues and pointed out that Safeway's slogan is "ingredients for life" but that the chain also sells cigarettes."

According to another article in the San Francisco Chronicle: "Attorneys for Walgreens are seeking an emergency injunction to stop San Francisco from banning the sale of tobacco products in pharmacies. In July, San Francisco became the first city in the nation to ban the sale of tobacco products in pharmacies such as Walgreens and Rite Aid, saying sick people getting their prescriptions filled shouldn't be faced with cancer-causing products sitting nearby. But the ban, which is scheduled to take effect Oct. 1, doesn't extend to grocery stores or big-box stores that also have pharmacies. That's why the company wants the plan stopped, said Walgreens spokeswoman Tiffani Bruce. 'Our position is based solely on being fair across different types of retailers,' she said, noting that smokers will just buy their cigarettes at another store down the block."

The Rest of the Story

There is a way in which I believe that Philip Morris could argue that the San Francisco ordinance violates its First Amendment free speech rights, but it is not the way that has been widely reported in the media.

First, the sale of tobacco products itself is not speech, so it would not be protected under the First Amendment. What is protected is speech, which means that Philip Morris would have to argue that the tobacco sales ban in pharmacies has the effect of restricting the company's right to advertising its products in these stores.

In the traditional advertising sense, this could be a hard sell. The ordinance does not actually preclude cigarette advertising in pharmacies. It seems to me that cigarette companies would still be free to purchase cigarette advertising space in pharmacies. Theoretically, they could also have cigarette promotional displays in these locations. The only thing the law precludes is the sale of tobacco products, not the display or advertising of these products.

However, there is one type of cigarette promotional activity that is, in a de facto way, banned by the ordinance. That is the use of cigarette promotional allowances, or fees paid by cigarette companies to a retailer for the rights to sell its product in the store, to have the retailer promote it in a specific way, and to allow the retailer to sell it at a reduced price. Promotional allowances represent a huge proportion of overall tobacco promotional expenditures.

Thus, it seems to me that Philip Morris could attempt to argue that by banning tobacco sales in pharmacies, the city of San Francisco has essentially banned the ability of cigarette companies to use promotional allowances as a method of marketing its product in pharmacies in the city.

Is this a stretch? Certainly, in terms of succeeding in getting a preliminary injunction to halt enforcement of the ordinance, which would require showing a reasonable probability of legal success. But in terms of the ultimate litigation of this issue, it could make for an interesting case. Previous cases dealing with the application of the First Amendment to the protection of First Amendment rights of the tobacco companies have dealt directly with the regulation of cigarette advertising and promotion. This is the first case I am aware of in which the companies will assert that a regulation of tobacco sales has an indirect effect of denying them the right to communicate with customers by promoting their products in a certain way in certain types of stores.

The Walgreens lawsuit may actually have a better chance of success. Walgreens appears to be arguing not that regulating tobacco sales is unconstitutional, but that the specific way in which this ordinance regulates tobacco sales is unfair and further, irrational -- because that unfair treatment of certain stores is capricious.

The basic authority of the state to regulate the places where tobacco products are sold derives from the police powers granted to it by the 10th Amendment of the Constitution, which allow it to enact reasonable laws to protect public health, public morals, public safety, and the general welfare of the community. The key relevant limitations here are first, that the laws must be intended to protect the public's health, morals, safety or welfare and second, that the laws must be fair, sensible, and rational.

The San Francisco ordinance could be found to fail on both accounts.

First, there does not seem to be a compelling government interest in regulating the extent to which the decision a store makes about what products to sell is consistent with its expressed mission (for example, with its motto). This is the only reasonable basis that the city could argue that it needed to invoke its police powers. After all, there is no evidence that the elimination of tobacco sales in pharmacies will have any effect on youth access to tobacco products or on the access of adults to these products. Customers will simply purchase their products from other retail outlets. The ordinance will have the effect not of preventing or deterring people from smoking, but instead it will simply shift the locations where cigarettes are purchased.

So the government's real intent behind the ordinance is exactly as expressed by the city's health director: "it's a contradictory message for Walgreens to use the motto "the pharmacy America trusts" while selling cancer-causing tobacco products." In essence, the government's interest in regulating tobacco sales in pharmacies is to regulate the consistency of these stores' actions with their mottos.

Interestingly, if Walgreens were to change its motto to: "the pharmacy which sells Americans the products they want to buy," it would negate the need for the cigarette sales ban, since this motto would no longer be inconsistent with the selling of tobacco products.

In short, I don't believe that the city can compellingly argue that ensuring that the mottos of stores are consistent with the products being sold is a legitimate government interest. The city cannot successfully argue that the banning of cigarette sales in pharmacies is a measure that is needed to protect the public's health, safety, morals, or welfare.

The ordinance also fails on the second account because the decision to exempt grocery stores and box stores which have pharmacies from the ban (and in fact, the decision to exempt all non-pharmacy stores from the regulation) is irrational -- it is unfair and the unfair treatment of retail outlets appears to be capricious. I am just not aware of a rational basis why a law to protect the public's health from the hazards of cigarettes would require the regulation of cigarette sales only in free-standing pharmacies and pharmacies within drug stores, but not pharmacies in supermarkets or box stores (and not all retail outlets that sell cigarettes).

I think there is a reasonable chance that Walgreens will succeed in obtaining a temporary injunction against the ordinance. First for the above reasons, I think they can argue that there is a reasonable likelihood of legal success. Second, I think they can also argue that there is a danger of irreparable harm because a huge proportion of the company's sales are attributable to tobacco products and the ordinance will directly eliminate these sales -- sales which cannot be recovered and thus make the harm irreparable.

San Francisco Superior Court judge Peter Busch will consider Walgreen's request for a preliminary injunction at a hearing today. I will report the results of the hearing as soon as they are available.

Thursday, September 25, 2008

Globalink -an international tobacco control list-serve and discussion site - appears to now be sponsored by Pfizer. The logo for Pfizer appears on the Globalink main page, together with logos from other sponsors, including the UICC (International Union Against Cancer), the Rockefeller Foundation, and Sun Microsystems.

Globalink is a major forum for discussion of important tobacco control science and policy issues among international tobacco control practitioners. It includes thousands of professionals from all over the world (but not me, since I was kicked off because they didn't like what I was saying).

The Rest of the Story

This discovery is in line with my post from yesterday, which discussed the prostitution of the tobacco control movement through its close financial ties with the pharmaceutical industry and the loss of scientific integrity that has resulted. This is yet another example of an institutional conflict of interest. There is no way that one can expect an objective scientific debate over the best approach to smoking cessation on a discussion forum that is sponsored by a pharmaceutical company. More specifically, there is no way that one can expect an objective discussion of the merits of continuing to recommend Chantix on a forum that is sponsored by Pfizer.

It would be a different story if the discussion forum had nothing to do with smoking cessation strategies and the use of pharmaceuticals in smoking cessation. But that is one of the central areas of debate on the forum. Therefore, it is unthinkable that the directors of Globalink would sacrifice the integrity of the forum by accepting (or pursuing) sponsorship from Pfizer.

It seems quite clear that money is far more important than scientific integrity in tobacco control.

Wednesday, September 24, 2008

According to an article in Lawyers USA, there are now at least 200 lawsuits that have been filed by the families of plaintiffs who allege that their loved ones committed suicide as a result of taking the smoking cessation drug Chantix (varenicline) or by plaintiffs who attempted suicide after starting Chantix. These cases were filed by a single law firm, which is investigating another 1,200 cases. Another firm is investigating 175 similar cases.

The plaintiff's attorney was quoted in the article as describing the cases as follows: ""Tragically, almost without explanation, these people commit suicide, often without any prior diagnosis of family or individual history of depression, psychosis or any other type of psychological conditions."

According to the article: "On Feb. 1, 2008, the Food and Drug Administration issued an alert that 'serious neuropsychiatric symptoms have occurred in patients taking Chantix.' The symptoms include 'changes in behavior, agitation, depressed mood, suicidal ideation, and attempted and completed suicides.' 'It appears increasingly likely that there is an association between Chantix and serious neuropsychiatric symptoms,' the FDA stated. ..."

"A study in May 2008 by the Institute for Safe Medication Practices, a prescription drug watchdog group based near Philadelphia, reported that in the fourth quarter of 2007, varenicline accounted for 988 serious injuries reported to the FDA, more than any other single drug. ... The Federal Aviation Administration has banned pilots and air traffic controllers from using Chantix; the drug has also been banned for use by commercial drivers." ...

"On Feb. 1, 2008, Pfizer strengthened its Chantix labeling to include stronger warnings about neuropsychiatric symptoms. In May 2008, it revised the warning again, advising physicians to discontinue Chantix immediately if patients become agitated, depressed or suicidal."

Conflicts of Interest Among Tobacco Control Researchers and Institutions

As I have reported here, the national recommendation that Chantix and other smoking cessation drugs be used to treat nicotine dependence in every smoking patient, including the conclusion that Chantix is a superior treatment to the nicotine patch alone and the decision to recommend Chantix despite its reported potential adverse effects, was made by a national expert panel that had severe financial conflicts of interests.

The panel's chair - Dr. Michael C. Fiore - "reported that he served as an investigator on research studies at the University of Wisconsin (UW) that were supported wholly or in part by four pharmaceutical companies, and in 2005 received compensation from one pharmaceutical company. In addition, he reported that, in 1998, the UW appointed him to a named Chair, which was made possible by an unrestricted gift to the UW from GlaxoWellcome."

Importantly, Dr. Fiore has reported "that he has lectured and consulted for Pfizer and has served as an investigator on research studies at the University of Wisconsin (UW) that were supported by GlaxoSmithKline, Nabi, Pfizer, and sanofi-aventis." Pfizer is the company that markets Chantix.

In addition, eight of the panel members, including its senior scientist, reported financial conflicts of interest with Big Pharma. They have received, or are currently receiving, funding from pharmaceutical companies. Most of the involved companies stand to gain from the clinical practice guideline's recommendations, because these companies manufacture drugs recommended by the panel.

On top of all of this, an article in the American Journal of Preventive Medicine (2008; 35:158–176) reported that funding for the Clinical Practice Guideline project was provided by the Robert Wood Johnson Foundation - which is heavily underwritten by the pharmaceutical company Johnson & Johnson - and by the University of Wisconsin Center for Tobacco Research and Intervention, which has received massive funding from pharmaceutical companies.

While these conflicts of interest were disclosed in the report itself, the Center for Tobacco Research and Intervention appears to present the recommendations of the guideline without disclosing the conflicts of interest. The CTRI website lists the panel members, but fails to reveal their conflicts of interest with Big Pharma. Web pages that provide further detail about some of the panel members, including its chair, also fail to disclose these severe conflicts of interest. The CTRI summary of Chantix fails to disclose the Center's history of research funding from Pfizer and also fails to cite the FDA's statement that "It appears increasingly likely that there is an association between Chantix and serious neuropsychiatric symptoms."

Not only is the CTRI website failing to readily disclose these financial conflicts of interest, but it appears to me that the expert panel's chair failed to disclose his recent financial conflicts of interest on the primary disclosure form. Since that form asks for disclosure of "all ... affiliations with or financial involvement ... with any organization or entity with a financial interest in or financial conflict with guideline matter or materials" and it specifically refers to "the past 5 years," it seems that the panel chair's admitted "outside consulting work on an annual basis [that] has ranged between about $10,000 and $30,000 or $40,000 per year" should have been disclosed. Instead, the panel chair stated that he does not currently accept honoraria or consulting fees from pharmaceutical companies, which misleads the public by implying that he has not accepted honoraria or consulting fees for the past 5 years.

Since his testimony acknowledging annual consulting fees from pharmaceutical companies was in 2005, it appears, at very least, that the panel chair had a conflict of interest to disclose for the years 2001-2005. Since the primary disclosure form was signed in 2006, it should have reported any consulting fees received from 2002-2006.

The conflicts of interest in tobacco control go beyond individual researchers. The institution itself has been conflicted by virtue of its sponsorship by Big Pharma. For example, the 2009 World Conference on Tobacco or Health is being sponsored by GlaxoSmithKline and Pfizer. The 2007 National Tobacco Control Conference was sponsored by Pfizer.

The Rest of the Story

One of the most basic ethical principles in terms of conflicts of interest in medicine is that individuals with financial conflicts of interest should not participate in supposedly independent scientific reviews that are intended to produce national recommendations for clinical practice.

This basic ethical principle was violated by those who participated on the expert panel and took part in producing national recommendations for the use or non-use of smoking cessation drugs despite their financial conflicts of interest with pharmaceutical companies that manufacture or market those very products.

Not only was the participation of these individuals on the expert panel inappropriate and unethical, but a major component of the institution of tobacco control - namely, its national and international conferences - have prostituted themselves by accepting sponsorship from pharmaceutical companies which have a direct interest in the scientific and policy research and issues being discussed at these conferences.

While I hate to admit it, I believe that these extensive conflicts of interest may have contributed to the magnitude of the Chantix problem because in the absence of such conflicts, I do not believe that these panels and conferences would likely have produced a recommendation that all physicians use pharmaceuticals to treat nicotine dependence and that Chantix is to be recommended despite its reported side effects.

The Chantix experience serves as a poignant (and tragic) reminder of exactly why it is that financial conflicts of interest are not to be tolerated in the formation of national clinical treatment policy. The presence of financial conflicts of interest produces a bias (even if subconscious) that is unacceptable when recommendations are being made that affect people's lives (i.e., clinical practice).

The bias in the Clinical Practice Guideline panel's analysis is apparent when one considers the research documenting that the overwhelming majority of successful quit attempts are unplanned. The planning of quit attempts by patients with medication provided by their physicians is, on a population basis, one of the least effective methods of smoking cessation.Planned quit attempts are actually less successful than attempts that are unplanned. National smoking cessation policy and treatment of patients should therefore be based on efforts to motivate patients sufficiently to quit cold turkey, rather than to plan quit attempts for them.

The bias created by financial conflicts of interest with Big Pharma in tobacco control continues and can be seen in numerous research articles. For example, in response to the article documenting that unplanned quit attempts are the most successful, a researcher from the University of Vermont challenges the conclusions of that study. What is not disclosed is the fact that in 2006, the same researcher "accepted honoraria, fees or travel expenses from Academy for Educational Development, Atrium Healthcare, Cambridge Hospital, Celtic Pharmaceuticals/Xenova, Concepts in Medicine, Cowen and Companies, Cygnus, Edelman Bioscience, Exchange Supplies Ltd., Fagerstrom Consulting, Free and Clear, Health Learning Systems, Healthwise, JSR, Insyght, LEK Consulting, Maine Medical Center, Nabi Pharmaceuticals, New York Association of Substance Abuse Providers, Nabi Biopharmaceuticals, National Institutes on Health; Pfizer/U.S., Pfizer Canada, Pinney Associates, Sanofi-Aventis, Shire Health London, Temple University of Health Sciences, University of Wisconsin and ZS Associates."

What at first glance might appear to be an unbiased assessment of the state of the research turns out instead to be written by someone who has received money from a large number of pharmaceutical companies, including several that have a direct financial stake in consumers making planned rather than unplanned quit attempts.

The scientific integrity of the tobacco control movement has been tarnished by its lucrative financial relationship with Big Pharma. But what's worse, people's lives may actually be at stake in this game.

There is now strong evidence that the link between Chantix and suicidal behavior is real. When the FDA itself concludes that "It appears increasingly likely that there is an association between Chantix and serious neuropsychiatric symptoms" and forces Pfizer to put a warning on the drug label cautioning about these effects and when the organizations regulating pilots and commercial drivers have banned this medication, you know that you have a potentially serious problem at hand.

That tobacco control practitioners, organizations, and panels continue to recommend the use of this medication despite the apparent problem is questionable. That their decision to continue to recommend the use of this medication is biased on the basis of severe financial conflicts of interest with pharmaceutical companies in general and Pfizer in particular is inexcusable.

Tuesday, September 23, 2008

Three anti-smoking groups that have made public claims which I believe are defamatory, misleading, or false have failed to retract, correct, or modify their claims, despite having been informed about the untruthfulness of their public statements.

Here are the three claims:

1. In a document entitled "Exposing Recent Tobacco Industry Front Groups and Alliances," the Canadian Non-Smokers' Rights Association (NSRA) accused Citizens Against Government Encroachment (CAGE) of being a Big Tobacco front group. NRSA has made an unwarranted and undocumented accusation that CAGE is a tobacco industry front group. The charge is unwarranted because NRSA provides not a shred of evidence that CAGE receives tobacco industry funding or is in any way associated with the tobacco industry. (see original story)

2. On a "frequently asked questions" web page designed to provide factual information to the public about Pennsylvania's new smoking ban, the Pennsylvania Department of Health claims that "between 1 and 3 million adults non smokers die each year from exposure to secondhand smoke." All of the other statistics provided on this page refer to the state of Pennsylvania. The answer to the question is headlined by a smoking statistic from the state of Pennsylvania. Therefore, I think that most readers viewing this statistic would naturally assume that it relates to Pennsylvania. (see original story)

3. According to the SceneSmoking.org web site, 340 young people die every day from seeing smoking in movies. SceneSmoking.org is a web site dedicated to the effort to get smoking out of movies seen by young people, and is run by Breathe California of Sacramento-Emigrant Trails. (see original story)

As of the writing of this post, all three of these claims remain unchanged on the organizations' web site.

The most surprising is perhaps the NRSA claim, since it is potentially defamatory and one would think that the organization would want to get this off its web site right away. Second most surprising is the Pennsylvania Department of Health. One would think that the Department would want to clarify its claim that 1-3 million people each year die from secondhand smoke exposure, especially when that claim is provided in a way that leads readers to think it is referring only to the state of Pennsylvania. Least surprising is Breathe California of Sacramento-Emigrant Trails, which we all know employs a web master who has been on a sustained vacation on a remote island in the South Pacific.

The Rest of the Story

This is exactly the type of thing which makes me crazy. I can certainly understand that an organization could make a mistake, be careless, make assumptions that are not true, and so forth. However, I cannot understand how, once the mistake is pointed out to them, they would fail to immediately correct or clarify the claim.

If I had a web site and someone pointed out to me that it contained a false, inaccurate, misleading, or defamatory claim, I would immediately remove, correct, or clarify the claim. It wouldn't take a day. It wouldn't take a week. It wouldn't take 10 months. It would take all of a few minutes.

I'm dealing with a phenomenon that I just don't understand. Do these groups all employ the same web master, who is vacationing? Do they not care? Have they formed committees to study the problem? Do they actually believe that what they're saying is true? Do they understand that what they are claiming is false, but justify their actions because it is for the greater good? Is communicating truthfully and accurately simply not a priority for these groups?

I need my readers' help to understand this. It just doesn't make any sense to me.

Monday, September 22, 2008

New data published by Christopher Snowdon over at his blog Velvet Glove Iron Fist reveal that the conclusion by Pell et al. (published in the New England Journal of Medicine in July 2008) that hospital admissions for acute coronary syndrome in Scotland fell by 17% after implementation of the national smoking ban is incorrect.

The data presented by Pell et al. were incomplete in four major ways. First, they only reported data for the 10-month period preceding the smoking ban and the same 10-month period following the ban. The two months immediately following the ban were ignored, as were the same two months in the previous year. Second, Pell et al. only presented data for 10 months, which does not allow enough time to determine whether the observed trends were real (sustained) or just statistical artifacts. Third, Pell et al. did not go back in time to examine the baseline trends in acute coronary syndrome admissions. Finally, the study only examined data for a sample of hospitals in Scotland, not for the entire country.

In the present study, Snowdon obtains a complete data set of acute coronary syndrome admissions in all of Scotland for the entire period from 1999 through 2007. He includes data for the full two years following the smoking ban and for at least seven years preceding the ban.

Snowdon finds that contrary to the results reported by Pell et al., acute coronary syndrome admissions fell by just 9.3% in the year following the ban (compared to the year preceding the ban). But more importantly, this decline is no greater than that observed several times during the baseline period. For example: "AMI [acute myocardial infarction] admissions fell by 10.2% in 1999-2000 and angina admissions fell by 10.5% in 2005-2006 (there were also falls of 11.6%, 11% and 12% in previous years)."

Moreover, when one examines the full data, one sees that while there was a decline in acute coronary syndrome admissions in Scotland following the smoking ban, this decline was not as steep as it had been prior to the smoking ban. In other words, the rate of decline in acute coronary syndrome admissions actually decreased after the smoking ban.

The Rest of the Story

The data from 2007 make it clear that the Pell et al. conclusion is invalid. In that study, they looked at such a small snapshot in the data that they missed the overall pattern, which clearly shows that instead of there being a striking decline in acute coronary syndrome admissions, there has actually been a leveling off of the steep trend of declining admissions.

This analysis demonstrates why one has to be extremely careful in drawing causal conclusions when using time trend data and only examining brief snapshots in time. Time series studies must be conducted using all available data for long periods before and after the event of interest.

What is most interesting to me, however, is not that the conclusions of the Pell et al. study are invalid and that the trend they reported turns out not to be accurate. What is most interesting to me is the apparent bias in the research on this topic of smoking bans and heart attacks. It very much appears that researchers want to find an effect of smoking bans on heart attacks (which is understandable) and that they are subconsciously analyzing the data in such a way as to find such a pre-determined conclusion.

Look - you're hearing this from someone who has staked his career on the need for smoking bans, who has testified in support of smoking bans in more than 100 cities and states, who has published research on the health benefits of smoking bans, and who would therefore love nothing more than to find out that his work is helping to reduce heart attacks over a short term period. If anything, I should be strongly biased in favor of interpreting these data such as to find an effect.

However, these data are just so unconvincing that even I cannot, with any conscience, look at them and opine that they show a significant short-term effect of smoking bans on heart attack admissions (or acute coronary syndrome admissions). If anything, these data suggest that there was not any significant effect of the smoking ban on acute coronary syndrome admissions.

The unconscious bias in anti-smoking research is understandable to me, because I have come to realize that there is an extreme pressure in the movement to publish research that is favorable to the cause. The rewards go not to the scientists in the movement who are objective and committed to seeking out and reporting the truth. The accolades and acclaim go to those who report favorable results.

In other words, the value of scientific accuracy and scientific integrity is no longer recognized in the movement. It is now all about the direction of the findings.

Thursday, September 18, 2008

In a document entitled "Exposing Recent Tobacco Industry Front Groups and Alliances," the Canadian Non-Smokers' Rights Association (NSRA) accuses Citizens Against Government Encroachment (CAGE) of being a Big Tobacco front group. Readers may recognize CAGE as being the same group that has filed a defamation lawsuit against "Cathy Bell," who made a similar accusation against CAGE, but apparently retracted it from "her" web site after the lawsuit was filed.

The document, dated March 2008, defines a "front group" as being an industry-funded group that in some way hides its funding or its vested interest. In particular: "By operating in the shadows cast by Big Tobacco, industry-funded front groups make it difficult to determine whether these 'grassroots' organizations are truly independent or representing some other entity or vested interest."

The Non-Smokers' Rights Association adopts the following definition of "front group," which is taken from the SourceWatch encyclopedia: "A front group is an organization that purports to represent one agenda while in reality it serves some other party or interest whose sponsorship is hidden or rarely mentioned."

Thus, as NRSA defines it, a front group is funded (sponsored) by a third party whose interests are being directly served in a concealed way.

The Non-Smokers' Rights Association makes a clear delineation between front groups - which are funded by Big Tobacco - and other types of smokers' rights groups which oppose tobacco control causes but are independent of the tobacco industry. Specifically, NSRA states: "citizen-based smokers' rights groups and bartenders and restaurant workers who organize themselves to work against smoke-free public places and workplaces are sometimes mischaracterized as fronts for the tobacco industry."

The NRSA document goes on to list 3 categories of tobacco control opposition groups:

2) Organizations that behave like tobacco industry fronts -- These groups take positions which favor the tobacco industry but are not funded by the industry: "It is important to note...that even though these associations have fronted for, acted as apologists for tobacco companies, or partnered with the industry to undermine or block reform, they are not front groups like Mychoice.ca. They are legitimate organizations that play important roles in representing the interests of their members on a wide range of issues."

3) Think tanks -- these are groups which deal with issues other than tobacco, but which may receive tobacco industry funding and which take a position that supports the industry stand.

Under "Front Groups," NRSA lists, for example, Mychoice.ca - a group which NRSA states received $2.5 million from the Canadian Tobacco Manufacturers' Council.

Under "Front Groups," NRSA also lists CAGE.

Here is what NRSA states about CAGE to support its position that CAGE is a Big Tobacco front group:

"CAGE has ‘evolved’ from a student-based libertarian group of McGill University to a corporate-funded lobbying cluster, still based in Montreal. CAGE uses all of the tactics commonly employed by tobacco industry funded groups. The group first mobilized its ‘supporters’ to oppose a policy which would have eliminated the sale of tobacco products in a convenience store on McGill’s downtown campus. As is usual with industry front groups, CAGE became more active as legislators, in this case Québec’s Minister of Health, announced their intent to implement more stringent smoke-free legislation. CAGE is headed by David Romano, who is assisted by his brother Daniel and a few others, with financing provided by the Romano brothers. CAGE has publicly voiced its support for Peter Sergakis, Voula Demopoulos and the small group of Quebec bar owners who are fighting Quebec’s Tobacco Act in court."

The Rest of the Story

The rest of the story is that NRSA has made an unwarranted and undocumented accusation that CAGE is a tobacco industry front group. The charge is unwarranted because NRSA provides not a shred of evidence that CAGE receives tobacco industry funding or is in any way associated with the tobacco industry.

The Non-Smokers' Rights Association is truly in a hole trying to defend its accusation, because NRSA itself has defined "front group" as being a tobacco industry-funded organization. In fact, NRSA has gone so far as to make it clear that even groups which may act like front groups - opposing tobacco control policies - are not truly front groups if they do not receive tobacco funding and are actually acting on their own behalf, rather than merely doing the bidding for their tobacco industry sponsors.

Thus, the NRSA charge being leveled here by calling CAGE a front group is clearly that CAGE is funded by Big Tobacco and is therefore doing the tobacco industry's bidding. The charge, in addition, is that CAGE is hiding its tobacco industry funding and trying to deceive the public into thinking that it is a legitimate organization that aims to serve the interests of its grassroots members.

However, NRSA provides no evidence (none at all) that CAGE receives tobacco industry funding. While NRSA states that CAGE has opposed a number of tobacco control policies, it provides no evidence that CAGE was acting on behalf of the vested interests of a Big Tobacco sponsor. In summary, NRSA fails to document or provide any evidence that CAGE is funded by a tobacco company.

If untrue, this accusation may be a defamatory one because it would represent a lie, presumably communicated with malicious intent. The disregard for the truth would appear to be quite blatant since NRSA provides no evidence whatsoever that CAGE is funded by a tobacco company. Also, since NRSA makes a clear demarcation between front groups and groups which behave like fronts and chose to put CAGE in the former group rather than the latter, it is difficult to argue that NRSA is using the term "front group" loosely. There appears to be an intent to accuse CAGE of actual tobacco industry funding.

My point is that it is inappropriate (and possibly a violation of law) for NRSA to be making an accusation like this without documentation.

I have written previously on this blog about how this appears to be a new, but increasingly used tactic, of anti-smoking groups: accuse opposition organizations of being Big Tobacco front groups in order to discredit them, whether or not you have evidence to document or prove that your accusation is correct.

This is a tactic which has no place in the tobacco control movement.

I believe that NRSA either must provide the documentation that CAGE receives tobacco industry funding, or it must retract its accusation and apologize to CAGE for making an undocumented accusation.

Wednesday, September 17, 2008

According to an article in the Pittsburgh Post-Gazette, physicians in Pennsylvania are lobbying the legislature to renew a program in which the revenues from a 25 cent increase in the state's cigarette tax is allocated to help subsidize doctors' required malpractice premium payments. The program is apparently out of money and will die if the legislature does not renew the cigarette tax increase for this purpose.

At the same time, the Governor and Democratic legislative leaders are attempting to tie the malpractice premium rebate proposal to a proposal to expand health coverage for uninsured Pennsylvanians -- a program which would be funded by...

... you guessed it: a 10 cent per pack increase in the state cigarette tax.

State Republican leaders appear reluctant to approve the cigarette tax increase to expand health care, but the Democrats seem to be using the renewal of the malpractice premium abatement program as a bargaining chip to induce the GOP to agree to the health care expansion -- and an additional increase in the cigarette tax.

According to the article: "A rebate program that helps Pennsylvania doctors pay for costly malpractice insurance appears to be on life support, but doctors are scheduled to rally in Harrisburg's Capitol rotunda today in hopes that the state Legislature and the governor's office don't pull the plug. For years, Pennsylvania doctors have relied on abatements to help them obtain medical malpractice insurance coverage through the state's Medical Care Availability and Reduction of Error fund. State law requires doctors to obtain $500,000 of med-mal coverage through the open market and another $500,000 through the Mcare insurance fund, which charges doctors a fee, then pays malpractice claims out of the fund. The abatement subsidies cut the cost of the Mcare coverage in half for most doctors, while high-risk doctors -- OB-GYNs, brain surgeons and so on -- are eligible for a full abatement in their Mcare assessments, meaning the extra $500,000 in coverage costs them nothing."

"But the fund abatements haven't been renewed. Gov. Ed Rendell and House Democrats say they won't move on the Mcare abatement program unless the state Senate, controlled by the GOP, first agrees to a plan to extend health-care coverage to greater numbers of Pennsylvanians, a central theme in the governor's budget proposal from this year. Senate Republicans, meanwhile, say they won't reauthorize the Pennsylvania Health Care Cost Containment Council without resolution of the Mcare abatement issue. The original authorization is set to expire this November."

"But the governor's office says the state has a moral obligation to take care of uninsured Pennsylvanians, as well as the doctors who care for them. 'We certainly believe that the Mcare extension should be done, but also believe that uninsured Pennsylvanians deserve as much consideration from the commonwealth as do doctors,' said Chuck Ardo, the governor's spokesman. 'If we can add a 25-cent levy on cigarettes to benefit doctors, we can certainly add an additional dime, and tax cigars and smokeless tobacco, to benefit the uninsured.'"

The Rest of the Story

This is about as absurd of a story as I think I've ever reported here. You mean to tell me that Pennsylvania is helping to pad the pockets of doctors - reducing their insurance premium payments - by relying on the consumption of cigarettes by those physicians' patients?

Don't get me wrong. I can't see the use of government resources - that is, my taxes - to help cushion the lifestyle of physicians by subsidizing the insurance premiums that the rest of us have to pay ourselves out of our own pockets. No one is subsidizing my insurance premiums. Why should the states' taxpayers be subsidizing the insurance payments for Pennsylvania doctors?

But what makes the story crazy and not just unjust is that the money to subsidize physicians' insurance payments is coming out of the pockets of their smoking patients.

What a perverse incentive this creates for Pennsylvania physicians. They need smokers to continue buying cigarettes in order for their insurance rebates to continue. Thus, there is a strong economic incentive for these physicians to do what they can to ensure that their patients do not quit smoking.

I have decided to go into the T-shirt business and start selling in Pennsylvania tomorrow. Here is a sampling of the slogans on the T-shirts I will be marketing to Keystone State smokers:

Tuesday, September 16, 2008

According to an article in the Pittsburgh Post-Gazette, the Pennsylvania System of Higher Education has banned smoking completely on all state-owned college campuses (indoors and outside), claiming that this new policy merely represents implementation of the state's new clean indoor air law, which became effective on September 11.

According to the article: "Anyone who figures the cost of college ought to entitle them to light up at least now and again better take a deep breath before approaching any of Pennsylvania's 14 state-owned universities. All of them now prohibit smoking, both inside buildings and on all outdoor grounds. The move affects 110,000 students and 12,000 campus employees statewide, including those on the Western Pennsylvania campuses of California, Clarion, Edinboro, Indiana and Slippery Rock universities. Leaders of the State System of Higher Education say the decision is their interpretation of Pennsylvania's new smoking ban, which took effect Thursday. Its statewide prohibitions extend to educational facilities, and the question became just where to draw the line on sprawling public universities. 'We consider our entire campuses educational facilities, inside and out,' state system spokesman Kenn Marshall said yesterday. 'We have classes that meet outdoors. We have events that are held outdoors. We're just basically following a state law,' he said. 'This is the way we read it.' The campuswide bans are all-encompassing, from athletic facilities and classroom labs to the student union and even parking lots within campus boundaries. There are no designated smoking areas, so those who insist on lighting up must leave campus or violate the law, officials said."

The Rest of the Story

Whether this policy is an appropriate public health measure or not, one thing that is clear is that it is not merely an implementation of the newly-effective Pennsylvania law.

Enacted Senate Bill 246 does ban smoking in public places, including educational institutions. However, the law defines a "public place" as "an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted."

Thus, the only campus areas covered by the smoking ban are indoor areas and enclosed outdoor areas. If an outside area is not enclosed, then it is not regulated under the act. The Pennsylvania Department of Health itself acknowledges that the law "does not ban smoking for structures such as a deck or patio that is not enclosed by walls and a ceiling."

It is not clear to me why the System of Higher Education would try to hide behind the law (an approach which fails), rather than to simply admit that it is intentionally and voluntarily instituting this policy.

I have made my opinion clear previously that I do not view this policy as appropriate from a public health perspective because it goes far beyond the need to protect nonsmokers from tobacco smoke exposure. By regulating smoking even in open and remote outdoors locations on campuses, the policy is clearly intended as a paternalistic measure to protect smokers from their own health decisions.

The policy is also hypocritical, since its stated purpose is "to promote good health" but the System of Higher Education still allows fat-laden foods, smokeless tobacco, and alcohol on its campuses.

Perhaps this is why the System of Higher Education tried to pretend that its policy was merely a necessary implementation of the state law.

In a related note, the Pennsylvania Department of Health web site still maintains that secondhand smoke kills between one and three millions nonsmokers each year, but without qualifying the statement to indicate whether it is referring to Pennsylvanians, Americans, or all people in the world. Since the adjacent statements refer to the state of Pennsylvania, many readers will assume that the 1-3 million figure refers to the state, or possibly the nation. There would be no reason for anyone to take the statement to be referring to a global estimate. Therefore, the statement is extremely misleading and arguably, it is intentionally misleading. Although the Department of Health has apparently been made aware of this problem, it has still not taken any action to correct it.

Monday, September 15, 2008

Many of my readers are familiar with a frequent commenter - "Cathy Bell" - who has posted comments on this site from time to time. On Thursday, Citizens Against Government Encroachment (CAGE) posted a column which revealed the results of an investigation that culminated in the determination of Cathy Bell's true identity and announced that CAGE is initiating a defamation lawsuit against "Cathy" based on claims "she" has made about the organization.

I thought my readers would be interested in this story, and therefore, I am posting, with CAGE's permission, the full text of CAGE's column, which was originally published here.

The original title of the column is: "Revealing the Cathy Bell Hypocrisy."

"For the past two years, a certain “Cathy Bell” has been making “her” presence felt on the Internet. “She” regularly frequented many of the forums, newspaper websites, “wiki” websites and discussion boards dealing with the tobacco issue. Therein, “she” used very unscrupulous and unethical propaganda tactics, engaging in ceaseless ad hominem attacks on anyone who disagreed with any element of the tobacco control industry’s agenda.

“Cathy Bell’s” own apparent agenda was not to engage in civilized debate, but rather to insult and discredit anybody who dared to disagree with her hard-core prohibitionist point of view. Rather than accepting invitations to serious and fact-based discussion, “Cathy Bell” preferred to resort to the tactic of poisoning the well, trying to discredit her adversaries by any means. Her most odious tactic, however, was to choose particular opponents who distinguished themselves the most and to launch a relentless barrage of barbs attacking their integrity, honesty, intelligence and motives. Her apparent goal was to make her most effective adversaries pay a personal price for opposing her points of view. Perhaps “she” sought to make an example of them: “If you dare to stand up and speak out, if you dare to contradict the government approved wisdom of the pharmaceutical companies and the ‘non-profit’ franchises that they support, you will be made to suffer in terms of your career, your livelihood, your reputation, and even your personal life”. Her mission was to squelch any kind of dissent or opposition. Of all of “Cathy Bell’s” targets, “she” reserved the greatest amount of harassment for David Romano, one of C.A.G.E.’s founders.

Cathy Bell methodically researched Dr. Romano’s academic and professional history, noting every place he had studied and worked, and proceeded to, over a period of two years, send bombardments of thousands of e-mails to his past and present work colleagues (he works in a field unrelated to the tobacco issue) and to anyone else whom “she” thought may have some connection or interaction with Dr. Romano. These e-mails were full of libels, innuendos and accusations regarding David Romano’s motives and character. “She” claimed that other C.A.G.E. officers and supporters must be deluded saps under David Romano’s mental control (“she” was apparently incapable of understanding how anyone could disagree with the government harassing and coercing people for their own good). Without any basis or foundation whatsoever, “she” warned Dr. Romano’s employers that he might be prone to violence and may pose a threat to his colleagues, and “she” claimed “herself” to be in physical danger from his “fanatical” cult of followers who were members of C.A.G.E.. “She” even created nearly a dozen geocities websites as part of her harassment and defamation campaign against David Romano. Some of these sites even included death threats against C.A.G.E.’s founders. All the while, “she” insisted that “Cathy Bell” was her legal name, yet for some of her regular e-mail salvos, “she” occasionally used other pseudonyms such as “Diane Smith”, or “Benny”. “She” also used a convoluted system to maintain “her” internet anonymity.

With the help of the Montreal Police, C.A.G.E. has succeeded in uncovering Cathy Bell’s true identity and exact address. It turns out that “she” lives on Sherbrooke Street in the West part of Montreal. It turns out that “she” is actually an average-looking young man whom, for the time being, we will identify only as “Mr. Jones”. Obviously, “she” is a man with far too much time on his hands. C.A.G.E. looks forward to chatting with Mr. Jones in court, and we have already served him with the preliminary documents for initiating a civil law suit. It will be very interesting to find out whether he was also lying when he insisted that he was acting out of his own initiative and was not getting his cues from any organization with a stake in this issue.

But law suits can be expensive. The Directors and core members of C.A.G.E. have already donated and/or pledged a lot of money from their own pockets in order to help with the investigation of “Cathy Bell” and to prepare the law suit, not to mention hundreds of hours of personal time. We need help in order to bring this person to justice and the only people who can help us are the same ones who support C.A.G.E.’s message and mission. At this time, we have already raised $6,000 for this legal fight, and anticipate the need for another $14,000 at the very least. Anyone wishing to donate funds for a long and very justified legal process is invited to do so via check or via our Paypal account located on the C.A.G.E. website at:http://www.cagecanada.ca/index.php?pr=Support. We will publish regular updates of the progress of the case, and C.A.G.E. promises to keep all individual donors informed of the progress and details of the proceedings.

It is important that those such as “Cathy Bell” and his supporters and allies who would use unscrupulous tactics and personal attacks to squelch dissent, learn that those who have the will and the courage to stand up for the rights of others against government encroachment most certainly have the will and the drive to defend their own rights against such cowardly and unethical harassment campaigns. We hope that you will stand with us in this battle, and stand up for those who are willing to devote the most to protecting our freedoms and liberties."

The Rest of the Story

I think that the "Cathy Bell" story is important because it illustrates a general tactic being used by anti-smoking advocates and organizations: trying to discredit the opposition through undocumented personal attacks, rather than substantive discussion of the issues. The most widely used of these tactics is to insinuate that an opposition organization is funded by Big Tobacco, even if you have no evidence to prove that your accusation is correct.

Even though I am a widely known anti-smoking advocate, some of my colleagues in tobacco control used this very tactic against me. Several times, I have been publicly accused of being supported by Big Tobacco.

I have written a number of columns that address this issue, and I encourage readers to review these postings as they are quite relevant to the "Cathy Bell" story:

Challenging Dogma (Post #2): Anyone Who Disagrees With the Anti-Smoking Movement is Affiliated with the Tobacco Industry (July 20, 2005)

Right From the Anti-Smoking Playbook: When You Don't Like Something Someone Says, Accuse Them of Being a Big Tobacco Shill (April 29, 2008)

I feel strongly enough about this issue that I have made a personal donation to CAGE to support its efforts to help ensure that innocent people do not become victims of the vicious attack tactics that have become a part of the strategy of many anti-smoking advocates and groups. I wish CAGE success in its efforts. God knows, I have tried to create change from within the movement, but to little avail. Perhaps litigation is just what is needed to teach these groups that the ends do not justify the use of inappropriate and arguably illegal means.

Thursday, September 11, 2008

On a "frequently asked questions" web page designed to provide factual information to the public about Pennsylvania's new smoking ban, the Pennsylvania Department of Health offers the following statistics:

"Q. Why is this a big deal – not that many people smoke in Pennsylvania.A. Two million Pennsylvania adults are current smokers

Over 20,000 Pennsylvania adults die each year from their own smoking

Approximately 300,000 kids under age 18 and alive in Pennsylvania who will ultimately die prematurely from smoking

It is estimated that between 1 and 3 million adults non smokers die each year from exposure to secondhand smoke

Over $5 billion in annual health care costs in Pennsylvania are directly caused by smoking"

The Rest of the Story

The claim in question is that between 1 and 3 million adult nonsmokers die each year from secondhand smoke.

All of the other statistics provided refer to the state of Pennsylvania. The answer to the question is headlined by a smoking statistic from the state of Pennsylvania. Therefore, I think that most readers viewing this 3rd bullet point would naturally assume that it relates to Pennsylvania. Perhaps some people who see that the number of deaths is just too high for one state would assume that it is referring to data for the nation as a whole.

However, this statistic is clearly absurdly false unless it is referring to the entire world. Since there are only about 2.5 million deaths annually in the United States from all causes, there are obviously not 1-3 million deaths from secondhand smoke. Even assuming that the statement refers to the entire world, it still appears to be an exaggeration (based on the estimate of 53,000 deaths per year in the United States, there would be approximately 660,000 deaths worldwide). But let's assume, for a moment, that the statistic is at least somewhat close to representing a reasonable estimate of the annual number of worldwide deaths due to secondhand smoke.

Why would the Pennsylvania Department of Health fail to qualify this 3rd statement by making it clear that it refers to the entire world? Especially when all the other statistics refer only to the state of Pennsylvania!

In my opinion, this appears to be a deliberate attempt to mislead people into believing that the death toll from secondhand smoke is greater than it actually is.

In fact, I find this to be worse than what I originally thought, which is that the Department of Health was simply making a careless, errant statement. Had the Department of Health actually been claiming that 1-3 million people in the U.S. die each year from secondhand smoke, then it would represent a blatantly false claim, but it could probably be explained as being an errant statement resulting from some very careless factual preparation and review.

However, in the context in which it is presented, it now appears that a more likely explanation is that the statement was intentionally thrown in there to mislead the public and to exaggerate the perceived death toll from secondhand smoke.

It seems that the natural statistic to include as the 3rd bullet would have been the annual number of deaths in Pennsylvania due to secondhand smoke. Sticking worldwide data on the deaths from secondhand smoke in the midst of all the state-specific estimates seems quite odd. So odd that I question whether this is not a deliberate attempt to mislead people.

Whether deliberate or not, it is extremely misleading. Clearly, the reporter who wrote about these statistics in the article I discussed yesterday was greatly misled. It was her clear impression that the health department was stating that there are 1-3 million deaths each year from secondhand smoke in the U.S.

Under the circumstances, the health department would need to be extremely careful in communicating this statistic, since it is a worldwide estimate in the midst of a large number of statewide estimates. Clearly, little care was taken and I believe little care was taken to ensure that the site communicates information clearly and accurately to the public.

As I stated yesterday, anti-smoking groups do not appear to be taking any reasonable degree of care in communicating information to the public these days. The truth be told - the truth just doesn't matter any more. These groups believe that they have goodness on their side. The ends are good and noble ones and so it just doesn't matter whether every statistic you put out there is correct or not or whether the information you are communicating is wildly misleading. These groups are trying to save lives. Why should scientific accuracy get in the way?

I'll tell you why. Because scientific accuracy, honesty in public communications, and scientific integrity are treasured core ethical values of public health practice. By violating these basic standards, these groups are giving the tobacco control movement, and perhaps public health at large, a bad name.

In the long run, the damage to the reputation of the tobacco control movement and public health will be far greater than any fleeting benefits of the public having an exaggerated perception of the death toll from secondhand smoke.

Wednesday, September 10, 2008

According to an article at the news site delcotimes.com (Philadelphia), the Pennsylvania Department of Health claims that between 1 million and 3 million adult nonsmokers in the U.S. die each year from secondhand smoke exposure. In addition, the newspaper reports that the health department claims that 300,000 children (under age 18) in Pennsylvania die from smoking, either directly or indirectly.

According to the article: "Most Pennsylvanians won't balk at going outside to light up if data collected by the Pennsylvania Department of Health is any indicator. Eighty percent of Pennsylvanians want a smoke-free work and play environment, said state health department spokeswoman Holli Senior. ... 'We obviously hope the law will have a huge impact on Pennsylvanians' health,' said Senior. ... Senior noted that more than 20,000 Pennsylvania adults die each year from their own smoking and approximately 300,000 Pennsylvanians under the age of 18 die either directly or indirectly because of smoking. Nationally, it is estimated that between 1 million and 3 million adult non-smokers die each year from exposure to second-hand smoke, noted Senior."

The Rest of the Story

Both of these claims are absurd on their face, as they are statistically impossible.

There are approximately 2.5 million deaths annually in the United States from all causes. Thus, there is no way that there could be 3 million deaths each year due to secondhand smoke. Since active smoking is only responsible for an estimated 400,000 deaths each year, it is obviously impossible that secondhand smoke could cause anything close to 1 million deaths. In fact, the most extreme estimate I have ever seen of the annual number of deaths in the United States due to secondhand smoke is about 60,000.

There are approximately 125,000 deaths annually in Pennsylvania from all causes. Thus, there is no way that there could be 300,000 deaths among youths from any cause, much less from smoking. Since there are only about 2,000 deaths each year among youths (under age 18) in Pennsylvania, it is obviously impossible that secondhand smoke could cause 300,000 deaths among this population.

I suppose it's possible that the newspaper reporter just got these facts wrong, but even if that's the case, it is incumbent upon the health department to correct the errors. As of this posting, the errors have not been corrected.

Assuming that this was merely the result of a careless error, the interesting question becomes: Why is this climate one in which anti-smoking advocates are being careless with the facts?"

The answer, I believe, is that the tobacco industry is no longer monitoring our statements and calling us on any unsupported claims. It's now basically a free for all. Here we have two of the most outrageous claims imaginable and you don't even see so much as a correction.

Perhaps the tobacco companies are assuming that if they simply let the anti-smoking advocates have at it, they will eventually come up with such outrageous claims that the public will stop believing everything they say. If you go around telling people that 3 million people die every year in the U.S. from secondhand smoke, it's not going to take very long before you lose all public credibility.

Now, let's just examine what the health department is telling us here. If 3 million people die each year from secondhand smoke, but only 2.5 million die from all causes, then I guess that means secondhand smoke exposure causes half a million people to become essentially, but not technically, dead. Essentially, they become walking zombies.

While this phenomenon was previously attributed to sleep deprivation, it apparently is the case that the walking zombie syndrome is caused by too much secondhand smoke exposure.

So the next time you hang out in a smoky bar late at night and feel hung over the next morning, rest assured it's not the alcohol nor the lack of sleep that is responsible for your symptoms: it's the secondhand smoke, for sure.

Tuesday, September 09, 2008

Starting on November 1, Akron Children's Hospital will rescind its offer of employment to any individual who tests positive for nicotine in a required pre-employment health screening.

According to a press release announcing the new policy: "In an effort to further its mission of promoting a healthy environment and lifestyle, Akron Children’s Hospital is joining the ranks of about 6,000 other companies nationwide and establishing a new nicotine-free hiring policy. The policy, which will be implemented incrementally beginning Aug. 1, will add a nicotine test to the hospital’s existing health and wellness screenings for new hires."

"'As a trusted leader in pediatric healthcare, Akron Children’s Hospital is dedicated to establishing wellness initiatives that support our mission to promote a healthy environment and lifestyle,' said Walt Schwoeble, vice president of Human Resources at Akron Children’s. ... 'By instituting a nicotine-free hiring policy, we can further support our wellness mission and model the healthy behavior we promote,' he said."

"Between Aug. 1 and Oct. 31, job applicants who are newly hired at Akron Children’s will be tested for nicotine as part of the pre-employment panel of medical tests performed by employee health nurses. Applicants who test positive for nicotine will be encouraged to take advantage of the free smoking cessation services already available to existing employees. Beginning Nov. 1, however, applicants who test positive for nicotine will have their offer of employment rescinded and be given information about smoking cessation. They may reapply for employment after 90 days."

The Rest of the Story

If the policy is what the press release says it is, then not only will Akron Children's Hospital no longer hire smokers and smokeless tobacco users, but it will no longer hire anyone who lives with a smoker, or anyone who is significantly exposed to secondhand smoke. After all, it is not just smokers and smokeless tobacco users who test positive for nicotine. Anyone with significant secondhand smoke exposure will also test positive. The Akron Children's Hospital will be severely limiting its pool of potential employees if it actually implements this policy as stated.

More likely, the actual policy sets a cut-off to differentiate active and passive smoking. But this highlights a key flaw in the reasoning behind the policy. If the point is to promote health and wellness, then both active and passive smokers should be targets of the employment discrimination. After all, by some reports passive smoking is just as hazardous as active smoking and we know that there is a substantial heart attack risk for individuals who are exposed to more than 30 minutes of secondhand smoke.

The policy is also flawed because it fails to rescind the employment offer of those individuals who are significantly overweight, those who do not get regular exercise, and those who eat high-fat diets.

Other problems abound. Suppose an individual is using smokeless tobacco products in order to quit smoking cigarettes. Shouldn't that be encouraged, rather than disallowed? What if a smoker desires to quit smoking and has been trying really hard? Isn't that a behavior to be encouraged?

Is all of this really worth decreasing the pool of applicants by at least 20%? Especially when there is a nursing shortage and very good nurses are hard to find?

This is blatant employment discrimination. By definition, the policy will result in the denial of employment to the best qualified candidates for the job. In fact, the best qualified candidates will have already been hired, and many of them will have their offers rescinded solely because they smoke or use smokeless tobacco.

The requirement of an invasive test for nicotine after the offer of employment has been made seems to me to be a undue invasion of employee privacy. It will be interesting to see what will happen if this policy is challenged under Ohio privacy protection law.

In Ohio, employers who are refused employment have a successful claim of invasion of privacy against the employer if in denying employment, the employer "wrongfully intrudes" into the "private activities" of the employee.

What is wrongful intrusion into private activities? The Ohio Supreme Court has defined this as follows: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

Would obtaining a body fluid sample for the sole purpose of determining the lawful behavior that a person is engaging in during their off-work hours in the privacy of their own homes and which does not directly affect their qualifications for employment be highly offensive to a reasonable person?

I should think so.

Hopefully, some day we'll find out whether the Ohio Supreme Court agrees.

Monday, September 08, 2008

On Thursday, I reported that Boston is poised to follow San Francisco's lead of banning the sale of tobacco products in pharmacies. Boston may expand that policy by also banning tobacco sales at stores on college campuses.

On Friday, Americans for Nonsmokers' Rights (ANR) - a major national anti-smoking group - issued an action alert expressing its support for Boston's proposed regulation of tobacco sales in pharmacies and on college campuses.

According to the action alert: "People go to their neighborhood pharmacies to stay healthy and get better when they're sick, not to buy products that can kill them. It makes sense that pharmacies should not sell an addictive, deadly product which is the #1 preventable cause of death in U.S. Boston is doing the right thing by helping eliminate tobacco sales in all health care facilities, including pharmacies, and helping lower the city's tobacco-related disease burden and healthcare costs."

This action is significant because ANR does not usually take policy positions on issues that do not directly involve secondhand smoke. Thus, ANR's support for the ban on tobacco sales in pharmacies is strong and noteworthy. It clearly sets the national anti-smoking movement behind the push for regulating tobacco sales in pharmacies.

In a Boston Globeeditorial Sunday which supports the proposal, the Boston Public Health Commission executive director is quoted as rationalizing the regulations as follows: "It is not enough to say eat well, exercise, and don't smoke. You have to promote the conditions that promote people taking care of themselves." The editorial went on: "Tobacco, as its defenders like to point out, is still a legal product. But unlike candy or soda, it is intentionally addictive, and is lethal even when used as directed. Restricting its access is squarely within the public health department's mission."

According to an article in the Santa Maria Times: "Bars in the unincorporated areas of San Luis Obispo County would not be allowed to sell tobacco products if an ordinance revised by supervisors Tuesday wins final approval Sept. 16. The provision banning tobacco sales in bars was not part of the original tobacco sales licensing ordinance scheduled for a public hearing Tuesday but was added on the motion of 4th District Supervisor Katcho Achadjian. ... Achadjian asked to have the ban on bar sales added at the recommendation of Susan Hughes, program manager for the county's Tobacco Control Program, and the request of 2nd District Supervisor Bruce Gibson. Hughes said because tobacco advertising and marketing has become so restricted, the tobacco companies are targeting 18- to 24-year-olds through “bar night” promotions."

The Rest of the Story

I find this new aspect of the anti-smoking agenda problematic for two reasons. First, I do not see this as a legitimate area for government regulation. Second, I think these types of interventions frame the problem of tobacco use in the wrong way and will, in the long run, hurt the overall tobacco control cause.

As I explained previously, there is no substantial government interest in regulating the consistency of a store's product sales and stated mission. But that is all a ban on tobacco sales at pharmacies (or on college campuses) is doing. These policies do nothing to reduce youth access to tobacco, nor do they do anything to reduce adult access to tobacco. There are plenty of retail outlets at which consumers can obtain cigarettes and there is no evidence, or even reason to believe, that eliminating the sale of tobacco at pharmacies and/or on college campuses will reduce tobacco use.

Thus, these are not truly public "health" regulations. They do not regulate in order to directly improve the public's health. Instead, they prevent stores from selling products which regulators don't see as consistent with their underlying mission.

But what is the underlying mission of any store? In my opinion, it's to sell products that people desire and to therefore make money. Unless a store is non-profit, it's mission ought to be to make profit by selling products for which there is a demand. I don't believe for a minute that the mission of CVS is to make the world a better place in which to live by making people healthier. No - the mission of CVS is to make money by selling products that the public demands. There is a high demand for medication, so CVS sells it. There is a high demand for cigarettes, so CVS sells these products as well.

According to ANR, "People go to their neighborhood pharmacies to stay healthy and get better when they're sick, not to buy products that can kill them." This is obviously not true. People do go to their neighborhood pharmacies to buy products that can kill them. Has ANR any idea of how many packs of cigarettes are sold at pharmacies each day?

While I agree that it sends a bad message for pharmacies to be selling both pharmaceuticals and cigarettes, I don't think there is a substantial government interest in making sure that stores do not "send the wrong message." I don't think you ban the sale of certain legal products because it sends a wrong message.

I find the stated rationale behind all of these proposals to be fundamentally flawed. ANR argues that the proposal will "lower the city's tobacco-related disease burden and healthcare costs." I don't think there is any evidence to support that argument. There are too many places where people can obtain cigarettes. Banning cigarette sales in pharmacies will not reduce tobacco sales; it will merely shift where some people buy their cigarettes.

The Globe editorial argues that "You have to promote the conditions that promote people taking care of themselves." If we accept that, then doesn't the government also have to promote people taking care of themselves by not buying cigarettes at convenience stores? How does it promote people taking care of themselves if they buy cigarettes at convenience stores rather than pharmacies? Are cigarettes from convenience stores somehow less harmful than those purchased at pharmacies? This rationale is ridiculous.

The editorial also argues that "Tobacco, as its defenders like to point out, is still a legal product. But unlike candy or soda, it is intentionally addictive, and is lethal even when used as directed. Restricting its access is squarely within the public health department's mission." But how does banning the sale of tobacco in pharmacies address the addictiveness and lethality of tobacco products? If cigarettes from pharmacies are addictive and lethal, aren't cigarette purchased in other types of stores also addictive and lethal. And if cigarettes are so addictive, then won't smokers certainly buy cigarettes from other stores if they currently buy them at a pharmacy?

The argument being used to promote the ban on tobacco sales in bars is equally flawed. The problem, apparently, is that tobacco companies are sponsoring bar night promotions. But the marketing of cigarettes to adults is legal. Since banning tobacco sales at bars is not going to reduce smoking rates (young adults can easily purchase cigarettes at other places if they wish to smoke), the proposed regulation is ostensibly intended to somehow make policy makers feel better by knowing that bars aren't selling tobacco.

In all of these cases, I fail to see the substantial government interest that would justify government regulation. I don't see that there is a direct effect on protecting the public's health that will be advanced by these policies. Essentially, what these proposals do is make us feel better about the tobacco problem without actually doing anything to put a dent in tobacco use. I don't find that to be a good use of government regulation.

In addition to being a misuse of government regulation, these proposals are also problematic because they frame the problem of tobacco use in the wrong way. What these policies say is: "There's no problem with tobacco use. The problem is where people are buying their cigarettes. If we can restrict the places people buy cigarettes, we can all feel a lot better about this problem."

This, like many other aspects of the new tobacco control agenda, represents a feel-good approach that allows us to say that we are doing something, but without really addressing the underlying issues or developing and funding interventions that will actually make a difference in reducing tobacco use.

Thursday, September 04, 2008

According to an article in today's Boston Globe, the Boston Public Health Commission is prepared to enact regulations that would ban the sale of tobacco products at pharmacies as well as on college campuses. Boston is thus poised to follow the lead of San Francisco, whose ban on the sale of tobacco products sales in pharmacies will go into effect on October 1.

According to the Globe article, the reason for the ban on tobacco sales at pharmacies and on college campuses is that selling tobacco is inconsistent with the mission of these institutions: "the city decided to target sales at the 74 pharmacies in Boston ... because stocking tobacco, the leading cause of preventable death in the United States, is incompatible with the mission of a drugstore. 'Why, in a place where people go to get healthy and get information about staying healthy, would you want to sell something that has absolutely no redeeming value and ends up killing a lot of people?' said Ferrer, executive director of the Boston Public Health Commission."

The rationale for the ban on selling cigarettes in pharmacies was similar in San Francisco: "A pharmacy is a place you should go to get better, not to get cancer," [mayoral spokesperson] Ballard said. [Mayor] Newsom would analyze the effect of the new law before expanding it to other types of stores, Ballard said. ... While the law exempts some types of stores, Public Health Director Mitch Katz, who helped draft the legislation, said the intent was to focus the ban on the 'group where the case was the strongest.' 'We teach our children that supermarkets and wholesale stores are places you go to buy everything. When it comes to pharmacies, I feel that our children and our teenagers get a different message,' said Katz, who also suggested the ban could be broadened in the future."

A position paper prepared by pharmacists at the UCSF School of Pharmacy who support a ban on tobacco sales at pharmacies puts forward a similar rationale for these bans: "The sale of tobacco products, which cause death and disease, side-by-side with the sale of medications used to treat addiction to tobacco, conveys a disturbing message. Cigarette smoking is the leading preventable cause of disease and death in the United States. Approximately 438,000 deaths annually in the United States are attributable to smoking. ... It is a conflict of interest for pharmacies, providers of health care, to also profit from the sale of harmful products known to cause cancer, heart and pulmonary diseases."

The Rest of the Story

Before opining on the validity of the justification for banning tobacco sales in pharmacies and on college campuses, let us first establish that the purpose of the regulation is to eliminate the inconsistency between the mission of these institutions and the message sent by the sale of tobacco products, rather than the protection of the public's health.

First, there is absolutely no evidence that restricting the places where smokers may obtain tobacco products will have any effect on smoking. If smokers cannot buy cigarettes at pharmacies, they will simply go to other establishments - such as grocery stores, convenience stores, gas stations, and corner stores - to buy them. So the effect of the regulation will simply be to shift the places where people buy cigarettes, not to reduce the sale of tobacco.

The tobacco industry has in fact confirmed that it is not worried about any reduction in tobacco sales that would result from this regulation. According to the Globe article: "John Singleton, R.J. Reynolds Tobacco Co. spokesman, said that ... his firm, maker of Camel and Winston brands, does not believe the ban will significantly hurt sales... ."

Second, there is no evidence that prohibiting the sale of tobacco products in pharmacies or on college campuses will have any effect on youths' access to tobacco. Once again, youths can simply obtain their cigarettes elsewhere. Despite stringent restrictions on youth access to tobacco, a wealth of research confirms that these laws have no impact on youth smoking.

Thus, these regulations are not going to advance any direct protection of the public's health. They are not intended to directly improve the public's health. Instead, the intention is to prevent certain retail establishments from taking an action that is viewed as being inconsistent with their mission. In other words, the regulation is intended not to regulate the public's health, but to regulate the consistency of a mission of a store with its actions.

I just don't see the role of government in regulating the consistency of stores' mission and actions.

By the way, I am not disagreeing with the assertion that it sends a bad message when pharmacies sell tobacco products and medicines to treat smoking-related diseases. I accept the notion that pharmacies should not sell tobacco products. In fact, I have for many years been involved in efforts to convince pharmacies not to sell cigarettes. The difference is that we are seeking to convince pharmacies to voluntarily make the decision to halt tobacco sales. We are not pushing for legislation to ban the sale of tobacco products in pharmacies.

The use of government regulation of health hazards should be saved for situations where the regulation directly advances the government's interest in protecting the public's health. Regulating the consistency of retail stores' mission and actions is just too far beyond the protection of the public's health to justify. I don't think it is appropriate to regulate the messages that may be conveyed by the legal products that a store chooses to sell.

There are two reasons why I think this is an important issue.

First, if tobacco control practitioners over-use regulation, pursuing regulatory approaches that are not justified, then they risk losing public support for appropriate regulation of public health hazards. Public health practitioners do not want to create a public perception that we are over-regulating public health because we may lose support for regulations that do directly advance public health protection.

Second, by pursuing this regulatory approach, tobacco control practitioners are actually defining the problem of tobacco sales in the wrong way. Essentially, what this regulation says is that we have a problem not with the use of tobacco products because they kill over 400,000 people a year, but that we have a problem with people buying tobacco products at pharmacies.

Frankly, it doesn't bring me any consolation when a patient dies from tobacco-related disease to know that the individual purchased their cigarettes only at places where the sale of tobacco was consistent with the mission of the store. It wouldn't make me feel any better to know that the patient never bought cigarettes at a pharmacy or on a college campus. The problem is not where the person purchased cigarettes. The problem is that they died prematurely from a preventable, smoking-related disease. Banning cigarettes sales at pharmacies won't prevent these deaths.

Thus, in the long run, this type of regulation sends the wrong message. It sends the message that tobacco is a problem because people are purchasing it at pharmacies and on college campuses, rather than that tobacco is a problem because it is killing people.

Wednesday, September 03, 2008

Today, I give my readers a glimpse into some of my commentary on the state of the tobacco control movement, which I communicated with my colleagues in tobacco control, prior to The Rest of the Story, which I started in March 2005. I am sharing two email communications that I sent to a national tobacco control list-serve back in 2004.

The first (September 27, 2004) deals with the hypocrisy of the American Legacy Foundation in refusing to give grants to any university that takes tobacco money while at the same time begging the industry to provide funding for Legacy's "truth" campaign.

The second (October 6, 2004) deals with the lack of honesty and other unethical practices of the Campaign for Tobacco-Free Kids and what I saw then as an urgent need to restore integrity to the tobacco control movement.

Sent to National Tobacco Control List-ServeSeptember 27, 2004

Subject: American Legacy Foundation Hypocrisy Continues: Now They Aim to Join TFK in Bed with Philip Morris

According to a press release put out by the American Legacy Foundation today and a quote from Attorney General Sorrell, who is a Legacy Foundation Board member, the American Legacy Foundation is apparently still seeking tobacco industry funding to continue its "truth" campaign:

"The industry publicly claims to support youth tobacco prevention programs," Sorrell said. "Well, here's its opportunity to step up by continuing to fund truth(R). Forget about theMSA sunset provision."

In other words, the American Legacy Foundation is asking the tobacco companies for voluntary donations to support an anti-smoking campaign. This is exactly the type of thing that tobacco control practitioners have vociferously opposed for years. In fact, it's exactly what the Foundation itself, in its policies regarding grants to institutions, opposes. The Foundation requires schools of public health that receive Legacy funding to promise never to accept tobacco industry funding, and they are not eligible for such funding if the school currently takes tobacco money.

So let me get this straight: It's terribly wrong for another organization to take tobacco money to conduct what may be important research and tobacco control activities, but it's OK for the American Legacy Foundation to take tobacco money for its own purposes. If that's not the example given in the dictionary under the definition of "hypocrisy," it should be.

I don't know where our ethics, principle, and integrity have gone in tobacco control. As I sit here today, the Campaign for Tobacco-Free Kids is working alongside Philip Morris to promote legislation that would protect the company's market share and profits and protect it from liability and the American Legacy Foundation is doing everything it can to get Philip Morris to work alongside it - so that together, they can try to keep kids from smoking and ensure that smoking remains an adult activity.

I don't know who I'm fighting anymore. It used to be that we were fighting the tobacco companies, led by Philip Morris. Now we have to fight several major health organizations that are teaming up with Philip Morris: most notably, the Campaign for Tobacco-Free Kids and its jealous counterpart - the American Legacy Foundation - which apparently is only too eager to join hands with Philip Morris as well. It's becoming a contest to see who can get in bed with Philip Morris the quickest. I guess money can make even the ugliest entity look attractive.

I am truly discouraged by all of this - and I really believe that the tobacco control movement as we know it is coming to and end.

What is left is a movement run by a few organizations that are positioning themselves for their own financial gain at the expense of the grassroots movement that made tobacco control as successful as it was, and that have completely lost sight of the most basic principles of public health, ethical standards, and integrity, in order to achieve their narrow, short-sighted, and devastating (for public health) aims.

Sent to National Tobacco Control List-ServeOctober 6, 2004

Subject: Battle for Integrity in Tobacco Control Begins

As one battle ends - the battle to defeat the Philip Morris/Tobacco-Free Kids FDA deal - a new battle begins today: the battle to restore integrity and ethics to the tobacco control movement. In some ways, I view this as even more important than the defeat of the FDA legislation.

We cannot succeed if we are led by an organization whose tactics are unethical, which cannot answer a straightforward question about how a policy was developed, which has deceived the entire public health and tobacco control communities about its role in negotiating a critical public health policy, which has misled hundreds of public health organizations into signing onto what turns out to be a deal with Philip Morris, which misled tobacco farmers and used them as pawns in a political game to get its pet legislation passed, and which has distorted the facts about who was supporting or opposing the bill in a deliberate attempt to deceive its tobacco control constituents into supporting a policy that would have ultimately ended up being devastating to the public's health.

I'm not willing to stand for these tactics in tobacco control, and certainly not when these are the tactics that were used (luckily unsuccessfully) by what is perceived to be the leading tobacco control organization in the country.

The Campaign for Tobacco-Free Kids threw everything out in its unsuccessful and ill-fated attempt to pursue FDA regulation - ethics, basic standards of public health practice, forthrightness, integrity, and trust. Now it is time to do one of two things: either admit its breaches of ethical conduct and apologize or step out of the way and make room for some real leadership in tobacco control.

The damage done by the Campaign was severe, but it is possible that we can overcome it. But there is no room for the Campaign's tactics in this movement, which is based on a battle for the truth. Today begins the battle to reform the way our movement is being led. I invite others to join me in what I perceive is going to be a critical fight for the survival of the tobacco control movement as a true social, grassroots movement that is based on ethical public health principles, honesty, integrity, and commitment to the truth.

The Rest of the Story

The rest of the story is that I have not been joined by more than a few others in the fight to restore ethical principles - including honesty - to the tobacco control movement. On the contrary, I was almost immediately expelled from the national tobacco control list-serve for having the audacity to share these dissenting and critical views and the movement - including the involved organizations - refused to listen to or address these ethical problems. In fact, they have not only continued to this day but they have actually escalated substantially.

The response of these organizations has been either to ignore the criticism or even worse, to attack me personally and try to censor or discredit me (not my opinions). There has been no substantive response to these criticisms.

There are some interesting revelations from going back into the past and retrieving these old commentaries. First, this demonstrates that I went to great lengths to communicate my concerns "privately" to the relevant organizations, from within the movement, for a long time prior to writing publicly (on my blog) about these issues. Starting this blog was only a response to many years of talking to deaf ears. Turning to the public to expose the unethical tactics of the tobacco control movement was only a last resort which followed years of banging my head against the wall trying to reform the movement from within.

Second, going back in time has helped me realize how little these organizations have changed, how little they care about these criticisms, and how hopeless it is to expect meaningful change to occur. My posts about the Campaign for Tobacco-Free Kids from four years ago could just as well serve as current commentaries about national tobacco control policy promotion. Nothing has changed. No lessons have been learned. The tobacco control community has largely remained silent and there has been no general call for reform.

In fact, I think the tobacco control movement has in fact begun to embrace the use of these unethical principles. To be sure, lying to and misleading the public has now become entrenched as an accepted tobacco control practice. Despite my warnings and my urging the movement to preciously guard our commitment to the truth, the situation has deteriorated further and misleading the public is now an accepted tactic in the tobacco control playbook.

In summary, I have come to the conclusion that the grassroots tobacco control movement has largely been destroyed. I warned my colleagues about this during the early stages of its destruction - when it was not too late to prevent further damage. But now I believe it is too late. The grassroots tobacco control movement has been coopted by a few large, national organizations which command everyone else and dictate the agenda because they have huge amounts of funding. Other organizations are dependent upon these few groups for funding, so they refuse to criticize or allow anyone within the movement to dissent.

Back when the tobacco control movement was largely unfunded and was run by committed local volunteers, I lamented that there was not more money available for tobacco control programs. Well my wish came true when the Robert Wood Johnson Foundation stepped up to the plate and threw in millions of dollars to establish the Campaign for Tobacco-Free Kids and the Attorneys General were enticed into signing the Master Settlement Agreement which brought in millions of dollars to the American Legacy Foundation.

Well it turns out that this was actually the worst thing that could have ever happened to the tobacco control movement. Money corrupts and that's exactly what happened to the movement. It was all about money and prestige and basic principles were forgotten. The grassroots social movement that tobacco control once was has been destroyed.

I am no longer going to deceive myself into thinking that I can change the movement and restore its integrity. I am going to have to be content with documenting the downfall of the movement and hoping that my chronicling of this story will do a service to the public by helping social movements in the future to avoid this fate.

But restoring integrity to this movement: it ain't gonna happen.

I'm now going to stop banging my head against the wall. My head - and the wall - are very grateful.

About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 25 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.